Judge's Crude Behavior Infuriates Documentary Makers

Michael FoxMay 18, 2010

From “chilling” to “dangerous” to “horrendous,” local reactions to Judge Lewis A. Kaplan’s ruling in favor of Chevron in New York on May 6 ran an unsurprisingly narrow gamut. For those who missed the news, which flashed like lightning throughout the U.S. documentary community, the District Court jurist ruled that filmmaker Joe Berlinger must hand over some 600 hours of footage he compiled in the course of making Crude, his 2009 documentary chronicling the efforts of Ecuadorean citizens (with the assistance of U.S. lawyers) to hold Chevron legally responsible for toxic pollution and human and environmental damage as a result of the actions of its Texaco subsidiary. The company sought the footage–that is, interviews and outtakes–to assist in its defense against that suit; the judge ruled that Berlinger failed to show “whether any of his filmed material was subject to any confidentiality agreements with his sources, and that the release forms he used with his subjects gave him ‘carte blanche to use all of the footage in his production.’”

“To say that this ruling (if upheld) will have a chilling effect on doc production is a gross understatement,” local filmmaker Peter Esmonde (Trimpin: The Sound of Invention) wrote me in an email. “So much of documentary filmmaking depends on establishing and maintaining trust–and often confidentiality–with sources and subjects. This ruling undermines the fundamental right to journalistic confidentiality, which has been a cornerstone of documentary practice virtually since its inception. It threatens to destroy entire genres of documentary: public affairs documentary, social justice films, advocacy media.”

Esmonde cited several films that wouldn’t have been made without journalistic confidentiality, and stand as benchmarks of a healthy, functioning democracy: Edward R. Murrow’s Harvest of Shame, The Selling of the Pentagon, Hearts and Minds and Harlan County, USA, along with CBS’s See It Now, NBC’s White Paper, ABC’s Close-Up, 60 Minutes and 20/20.

Micha Peled, who gained access to workers as well as the owner of a Chinese jeans factory for China Blue, echoes Esmonde’s historical perspective. “Many of the most iconic American documentaries of all time–from An American Family and Salesman to The Thin Blue Line and The Cove and Sicko–would have lost their most powerful moments if people had to worry that the footage could be turned over to their employers or adversaries,” he asserts. “Same with TV investigative programs like ‘60 Minutes’ and ‘Frontline.’”

Peled likewise homes in on the problematic aspect of the Berlinger ruling. “When I shot China Blue, people agreed to appear only after I promised them their identity will be masked. If the Chinese government could force me to turn over my footage, they’d have ended up in jail. We point the finger at China for controlling the media. In the U.S., corporations with all the lawyers [that] money can buy achieve the same control.”

Veteran filmmaker Jed Riffe remembers that Chevron (Standard Oil of California) dumped 3 million gallons of oil in the bay in the winter of 1971, shortly after he moved to the Bay Area from Texas. So he has a special, um, affinity for the oil giant. “As a social issue filmmaker for over 35 years, it is chilling that one of the largest, richest and most powerful corporations in the world can spend all the money it wants to stifle free expression and the press in the U.S., and continue to exploit Third World countries and their peoples,” he wrote in an email. “The fact that Chevron is such a propagandist and uses the media through its advertising campaigns to present itself as a green company would be hilarious if it was not so chilling.”

Berlinger’s attorneys plan to appeal the ruling but the filmmaker, who has two children, has stated that he’s not willing to go to jail should the ultimately decision come down in favor of Chevron. While the case continues in the courts, what can and should filmmakers do?

“I think the IDA (International Documentary Association) should mount a huge legal defense,” declares veteran East Bay doc maker Connie Field. “This has to be challenged legally, and somebody needs to do that–somebody with resources. You also need to get support from major journalism schools.”

Field, whose multi-part apartheid doc, Have You Heard From Johannesburg, opens June 27 at the Roxie, adds, “I suppose anyone who’s making a documentary film on a topic that will be sensitive to major corporations needs to get legal advice on how you form a relationship with your subjects so this does not happen to you.” While every situation is unique, Field sees the need for “a legal formula for documentary filmmakers–this is how you protect yourself. We need to come up with a plan that people can then use when filming a subject such as this.”

Reached at Cannes, San Francisco attorney George Rush found time to tap out a few pithy lines on his phone. “The case is less groundbreaking than a wake-up call for filmmakers [about] how little protection there is for non-confidential sources,” Rush wrote. “Filmmakers need to be aware of this risk, and hopefully organize to try to get politicians to broaden shield laws to protect documentarians.”

Jed Riffe had referred me to Stephen Rohde, an author and veteran First Amendment lawyer with the Los Angeles firm Rohde & Victoroff. Rohde spent a good deal of time on the phone with me, outlining his position on this situation. “In my view, he said, “the filmmakers deserve full First Amendment protection to encourage investigative projects of this kind because, to the extent the ruling is upheld, it will have a chilling effect on documentary filmmakers and others who choose to go after large institutions with unlimited resources to crush these kinds of projects. This decision will dry up available sources, who will be intimidated and reluctant to give interviews to filmmakers for fear that anything private or confidential will end up in court.”

In a very important and pertinent case, Rohde represented Arthur “Buzz” Hirsch and the other filmmakers investigating the single-car crash that killed Kerr-McGee employee Karen Silkwood in 1974. The filmmakers acquired the story rights to the whistle-blower’s life and death from her father and were exploring how to proceed when things got dicey.

“The Silkwood family sued Kerr-McGee [for allegedly contaminating her with plutonium] and Kerr-McGee got wind of Hirsch, who had gone out to interview people who knew Silkwood and who spoke to him under a confidentiality promise,” Rohde explains. “We counseled Buzz and he invoked the First Amendment, not the Fifth Amendment, and the case went up to the 10th Circuit Court of Appeals and we won. A legitimate working filmmaker was protected by a qualified First Amendment privilege that could only be set aside by a showing that the information went to the heart of the underlying lawsuit and could not be discovered in any other way.”

Kerr-McGee did not appeal to the Supreme Court and Hirsch ultimately served as executive producer of Silkwood. I asked Rohde, who is the current chair of the ACLU Foundation of Southern California, if there was any difference between a Hollywood biopic and a documentary on this legal issue. “Some believe there‘s even a greater interest in nonfiction films than films made for entertainment,” he said. “I don’t personally calibrate First Amendment privilege in that way because I think it’s dangerous to let courts judge the worth of films and calibrate their First Amendment protection accordingly.”

In the Berlinger case, Chevron is seeking so-called outtakes. Rohde asserts unambiguously, “The First Amendment protects every aspect of the development, research, writing and production of a documentary. To extract the outtakes and other materials itself invades an important First Amendment right, even if it’s not an attempt to ban the movie itself.”

East Bay filmmaker Deborah Kaufman, co-director of Thirst with Alan Snitow and an attorney herself, had raised an ancillary legal issue with me, namely the use of SLAPP suits [Strategic Lawsuits Against Public Participation] by deep-pocketed companies to harass and squash filmmakers by making them incur substantial legal expenses. Rohde noted that California allows anti-SLAPP motions, a free-speech defense that must be filed within 60 days. If the motion is upheld, the plaintiff’s case is dismissed and the defendant awarded attorney’s fees. “It’s a strong remedy that could help California filmmakers in similar circumstances,” Rohde notes.

That’s a bit of reassuring news in the midst of a deeply unsettling development. For filmmakers anxious to take some action now, rather than waiting for the day when they’re in some corporation’s sights, we’ll conclude with a proposal from Connie Field: “I suggest that everybody write to the IDA that they take it on.”